Wednesday, December 6, 2006

New Papers on Originalism

From Louis Sirico, Villanova, Original Intent in the First Congress, on SSRN:

Most of the literature on this country's Founding Era concludes that at least in the very early years, the Founders did not look to original intent to construe the Constitution. However, this study looks not at what the Founders said they believed, but how they acted. In the First Federal Congress, the members did use arguments based on original intent. This study identifies their originalist arguments and categorizes them into five rhetorical categories. It concludes that these arguments did not dominate the debates, but were one type of argument among many.

And from Kurt Lash, Loyola, Popular Sovereignty, Originalism, and Reverse Stare Decisis, just posted on SSRN:

Although all theories of constitutional interpretation must confront the issue of stare decisis, the interpretive theory of originalism has generated particular attention given the potential for radical discontinuity between original meaning and current constitutional jurisprudence. This potential discontinuity creates a crisis of legitimacy for originalists, for it forces one to choose between interpretive (original meaning) and formalist (rule of law) legitimacy. In fact, all interpretive methods must confront the tension that arises when precedent and “proper” interpretation diverge. Resolving the tension requires a normative theory that allows one to weigh the costs of interpretive error against the benefits of following precedent. Presumably, as the costs of interpretive error increase, the less likely the benefits of stare decisis will overcome the incentive to overrule the case. Accordingly, one's ultimate theory of stare decisis necessarily reflects the normative commitments underlying one's particular interpretive approach.

In this article, I address the most common (and most influential) justification for originalism: popular sovereignty and the judicially enforced will of the people. Popular sovereignty both reflects and builds upon the normative theory of democratic rule - government by the majoritarian consent of the governed. The costs of judicial error under this approach waxes and wanes depending on the degree of departure from the people's will and the constraints placed on the ability of political majorities to respond to the court's error. The greater the intrusion into the democratic process, the greater the costs of judicial error and, accordingly, the greater the need for “weightier” pragmatic arguments if precedent is to control. Judicial errors that leave an issue under the control of political majorities generally impose such low costs in terms of constitutional legitimacy that the pragmatic considerations of stare decisis may come to the fore. On the other hand, judicial errors that completely remove a matter from majoritarian politics impose such high costs in terms of constitutional legitimacy that they ought to be treated as presumptively in need of overturning - a presumption I refer to as reverse stare decisis.

Allowing majoritarian politics to play a role in determining the strength of prior precedent is not a new idea: it was first suggested James Madison, one of the authors of the Constitution and a committed popular sovereigntist.